Allowed

Bindu Thomas v. Thomaskutty Sebastian

Kerala HC18 Sept 2012Mat.Appeal/145/2006

Case brief

AI extract

What is this about?

On an appeal challenging the Family Court's order granting permanent custody to the father, the Court reaffirmed the lower court's decision. While noting the child's preference for both parents and his educational stability, the Court held that the existing custody arrangement, including a 2008 modification, should continue unchanged.

What did the court decide?

The appeal was allowed to the extent that the Court preserved the mother's right to approach the Family Court again for permanent custody after the child's SSLC examination.

Bindu Thomas Vs Thomaskutty Sebastian — Child Custody and Guardianship | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH

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TUESDAY, THE 18TH DAY OF SEPTEMBER 2012/27TH BHADRA 1934

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Mat.Appeal.No. 145 of 2006 (A)

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[AGAINST THE THE ORDER IN O.P.NO.757/2001 OF THE FAMILY COURT,ERNAKULAM, DTD. 16/03/2006]

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APPELLANT/RESPONDENT:

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BINDU THOMAS, AGED 31 YEARS, D/O. JOSEPH, THIRUTHALIYIL HOUSE, H.NO.780/2, KATTITHARA ROAD, MARADU, KANAYANNOOR TALUK.

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BY ADV. SRI.P.P.JOYI.

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RESPONDENT/PETITIONER:

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THOMASKUTTY SEBASTIAN, AGED 36 YEARS, S/O. SEBASTIAN, KAKKADAYIL HOUSE, VAZHITHALA P.O., ERATTATHODU, VAZHITHALA VILLAGE, THODUPUZHA.

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BY ADVS. SRI.JOY GEORGE, SMT.PRAICY JOSEPH.

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 18-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Prv.

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PIUS C. KURIAKOSE &

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BABU MATHEW P. JOSEPH, JJ.

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Mat. Appeal No. 145 OF 2006

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Dated this the 18^th day of September, 2012

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J U D G M E N T

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PIUS C. KURIAKOSE, J

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Under challenge in this appeal preferred by the mother of a

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minor boy by name Tony Thomas is the order of the Family Court, Ernakulam in O.P.757 of 2001 under which the permanent custody of the child is given to the respondent, the child's father, husband of the petitioner. Under the impugned order as permanent custody was given to the father who is the legal guardian and custodian the Court has ordered temporary custody of the child to be given to its mother on every Second Saturday and Sundays as well as during vacation except December holidays. The Court below has also ordered that temporary custody will be given to the mother during first half of the mid summer holidays. This Court on 29.10.2008 after

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Mat. Appeal No.145 of 2006 -:2:-

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interacting with the child and its parents thought that the mother should be given temporary custody of the child more frequently than presently ordered by the Family Court and accordingly the directions in the impugned order regarding temporary custody was modified and it was ordered that apart from the period mentioned in the impugned order temporary custody of the child shall be entrusted with the mother on every alternate Saturday to be returned at 2 p.m. on the next Sunday. The above arrangement is continuing regarding the custody.

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Sri.P.P.Joy, learned counsel for the appellant would assail the impugned order on various grounds raised in the memorandum of appeal. He argued that the impugned order is the result of mis-appreciation of the pleadings and the evidence. The learned judge of the Family Court was unduly biased in favour of the respondent, father of the child. Sentiments of the mother who conceived and delivered the child have not been taken note of at all by the Family Court. Drawing our attention to S.17 of the Guardian and Wards Act Sri.Joy submitted that

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Mat. Appeal No.145 of 2006 -:3:-

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the paramount consideration is the welfare of the minor. He pointed out that for assessing the welfare of the child when the minor is old enough to prefer an intelligent preference, minor's preference should be given due weight. Learned counsel submitted that in the interaction with the minor on 29.10.2008, the learned Judges of this Court became satisfied that the preference of the minor is to go with his mother and that the impugned order is to be interfered with and permanent custody of the child is to be given to the appellant, its mother.

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Smt.Praicy Joseph, learned counsel for the respondent would support the impugned order. According to her, the evidence which came on record and the circumstantial evidence available in the case have been appreciated very correctly by the learned Family Court and therefore findings entered in the impugned order are perfectly correct. The boy is now admitted to a very good school in Thodupuzha which is at a distance of just 8 k.m. from respondent's house. He is very good at his studies. Any change in the present arrangement

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Mat. Appeal No.145 of 2006 -:4:-

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regarding custody will be detrimental to the welfare of the child, the learned counsel submitted. After hearing both the sides for some time we directed the respondent to produce the minor before this Court at 1.45 p.m. Today(18.9.2012), accordingly, the child Tony Thomas, aged 15 years appeared before us. We interacted with him in detail. We are convinced that the child is very intelligent and is capable of forming intelligent preference regarding his custody in the event of a dispute between his parents. Tony Thomas told us that he is studying in a very good school and that he is very good at studies and that even in the last examination he got A+ for all the subjects. The boy seems to be concerned about his education and indicated that any change in the existing arrangement regarding his custody may be harmful to him. At the same time very clearly he told us that he loves his mother, the appellant deeply and he needs his mother as well as his father alike. In fact, the boy's preference seems to be that both his parents should join together so that he can have all the love and affection and enjoy all other

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Mat. Appeal No.145 of 2006

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benefits of a normal family life where the parents and children

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live together under the same roof sharing the same mess.

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We have appreciated the submissions addressed by

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Mr.Joy, learned counsel for the appellant and also Smt.Praicy Joseph, learned counsel for the respondent. We have kept in mind the impressions gathered by us during our interaction with the child, Tony Thomas. We find that the evidence which came on record in the Family Court consisting of Exts.A1 to A4 and the witnesses PW1 and RW1 has been appreciated in a reasonable and correct manner by the learned Family Court. We find that the relevant considerations have been identified by the learned Judge under separate heads as follows.

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(1) Status of the petitioner, father as per the grounds

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under which the O.P. is filed.

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(2) Educational status of the parties.

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(3) Life habits of the parties and their environment.

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(4) Financial affluence of the parties.

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(5) Inclination of the parties for a harmonious married life.

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(6) Child abuse.

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Mat. Appeal No.145 of 2006

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(7) Mental condition of the parties.

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(8) Age of the child and proper person in whose custody it should grow.

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(9) Availability of educational institutions at the petitioner's place for continued academic career of the child.

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(10) Allegation as to filthy atmosphere prevailing in the petitioner's house.

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(11) Affinity of the child towards the petitioner and trauma if any experienced by the child during the occasional interim custody provided by the court.

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We find that the finding entered by the learned Judge under all the above heads is reasonably correct though as regards the findings under head (7)- mental condition of the parties it appears to us that the learned Judge has given unnecessary importance to an exaggerated version given by the mother in her pleadings that she would have committed suicide, if it is not for her child. The only question before us is whether

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the impugned order and the directions therein regarding the custody of the minor as modified by this Court in its order dated 29.10.2008 are liable to be varied by this Court. According to us the above question can be answered only in the negative.

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Mat. Appeal No.145 of 2006 -:7:-

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We do so. This means that we confirm the impugned order as well as the directions in the order dated 29.10.2008. In other words, the impugned order as modified by the order of this Court dated 29.10.2008 will continue to rule unless otherwise ordered by the Family Court. The petitioner mother is permitted to move Family Court again for permanent custody of the child after the minor's SSLC examination is over. If any motion is made by the appellant before the Family Court, necessarily the Family Court will call for the objections from the respondent to such motion and to take a further decision without being influenced by anything that is stated in the impugned order.

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Sd/- ( PIUS C. KURIAKOSE, JUDGE)

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Sd/- (BABU MATHEW P. JOSEPH, JUDGE)

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ul/-

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[True copy]

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P.S. to Judge.

Bindu Thomas v. Thomaskutty Sebastian

Case brief

What is this about?

What did the court decide?

Bindu Thomas v. Thomaskutty Sebastian

Case brief

What is this about?

What did the court decide?

What the court decided

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